McKinnon v State of Queensland and Anor (No 2)

[2012] QCAT 566

CITATION: McKinnon v State of Queensland and Anor (No 2) [2012] QCAT 566

APPLICANT:	Matthew McKinnon
v
State of Queensland (First Respondent) John Barron (Second Respondent)

APPLICATION NUMBER: ADL121-11

MATTER TYPE: Anti-discrimination matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 6 November 2012

DELIVERED AT: Brisbane

ORDERS MADE: The application to strike out the complaint is dismissed.

CATCHWORDS: ANTI-DISCRIMINATION – where allegation made that evidence inadequate to support complaint – where application made to strike out a complaint

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

1. The complaint by Matthew McKinnon that he was unlawfully discriminated against by the respondents was referred to QCAT in November 2011.  The complaint is scheduled for hearing in February 2013.  In accordance with the direction of the tribunal, Mr McKinnon has filed his statements of evidence.  Mr Barron has applied to strike out the complaint on the basis that the evidence produced does not include admissible expert medical evidence in support of the complaint and on the basis that other evidence has been provided to QCAT in breach of a Code of Conduct. 

2. Mr McKinnon asks that the strike out application is itself dismissed.  The State of Queensland does not support the strike out application. 

3. I am not prepared to strike out this complaint.  The lack of expert medical evidence at the hearing does not prevent QCAT from finding that a breach of the Anti-Discrimination Act 1991 took place.  At best the lack of relevant evidence may impede the quantification of the compensation claim made by Mr McKinnon.  However in his filed contentions he does not seek compensation for any medical condition sustained at his former workplace.  He seeks compensation for insult, humiliation and injury to his feelings. 

4. It is possible however that in his claim for recovery of lost income Mr McKinnon may rely on a contention that the humiliation that he suffered caused depression and anxiety.  It is a risk for Mr McKinnon to take that in the absence of relevant and cogent evidence, he may not be able to prove that part of his case in which he seeks to recover compensation for lost income.  

5. The assertion made by Mr Barron that some of the evidence filed by Mr McKinnon lacks proper probative value does not persuade me to strike out the complaint.  There is evidence in Mr McKinnon’s statements that, if accepted, is capable of proving the factual basis on which his complaint is made.  It is for the hearing member to then decide if the facts as established should lead to a conclusion that there has been a breach of the Act and also to decide what remedies are appropriate. 

6. Mr Barron’s application for a strike out does not address the issues usually put forward in such an application.  He has not argued that he has been unnecessarily disadvantaged in his response to the complaint by the actions of Mr McKinnon nor has he argued that continuing to a hearing is an abuse of process.  Dismissing a proceeding without a hearing is generally reserved for those cases where a compelling argument has been mounted that the claims in the proceeding are without merit having regard to the legal basis of the claim, to the evidence produced being manifestly inadequate to support the claims or to the unfair and disadvantageous impact on the other parties and on the tribunal should the claim proceed to a hearing.

7. It is a serious matter for the tribunal to dismiss a claim without allowing a hearing of that claim to take place.  Dismissal of the claim before a hearing would deprive Mr McKinnon of the opportunity to have an independent determination made on his claim that his human rights have been unlawfully contravened.   The grounds relied on by Mr Barron for dismissal are not compelling and do not persuade me to take away Mr McKinnon’s opportunity to have an independent determination of his complaint.

8. The application to strike out the complaint is dismissed.